October 2011

10/31/2011

“The more sophisticated firms, the ones that will thrive in the future, they have become very much aware of what this new situation presents,” said Silvia Hodges, who teaches law firm management at Fordham Law School. “To say or to assume that the status quo is going to prevail and that we’re not going to have any changes, that doesn’t make any sense.”

It was a big story last week when a survey of top law schools found that 41% of law school admissions offices surveyed did online research on applicants. Michigan Law's Sarah Zearfoss (assistant law dean and admissions director) has a very thoughtful post at her blog, A2Z, on the uses and abuses of the Internet to check out law school applicants. Unlike many (37%) of her peers at other schools, Zearfoss does not use Facebook to glean insights into applicants. But she does offer this as appropriate Internet searching:

One example: A couple of years ago, an applicant described a medical device of her own invention, designed to help her little sister, who suffered from a chronic illness. I was blown away; the applicant said she was about 12 at the time of the invention, and this achievement struck me as evidence both of an amazing degree of empathy for the age, as well as a prodigious talent. But since I’m no engineer, I wanted to get a sense of the utility of the invention and the degree to which it was being used. So I did a little research. And that’s how I discovered, entirely unexpectedly, a number of articles making it clear that the candidate had not in fact been the inventor; her identically named mother had been. That candidate did not get admitted, and I would strongly disagree with anyone who said that my use of the Web in that instance was inappropriate.

Mac users (such as this one) can be pretty smug about our relative freedom from malware. Here's some comeuppance. Cybersecurity blogs are just now issuing a rare warning about a "strange and sophisticated" Mac OS X malware called “DevilRobber.A.” It masquerades as a pirated image editing program called GraphicConverter version 7.4. Here's an explanation.

The case is Lafler v. Cooper, paired with Missouri v. Frye, focusing on whether defendants who reject a plea offer because of bad advice from their attorneys are entitled to relief if, as a result of the bad advice, they receive a longer sentence than the plea offer. The attorney's advice in the Michigan case was palpably bad. Cooper was accused of shooting a woman; significantly for purposes of this case, the shots were all below the waist. He was charged with assault with intent to murder. The plea offer was for a minimum sentence of 51 to 85 months in prison for a plea to the assault charge. Cooper's lawyer told him to reject the plea because the fact that the victim was injured only below the waist prevented the state from establishing an element of the charge, i.e., intent to murder. (Say what?)

The Brennan Center, Adam Liptak of the New York Times, and Nina Totenberg of NPR preview the cases, as do Anthony Franze and Jeremy McLaughlin for this blog. The editorial board of the New York Times also weighed in on Frye over the weekend, arguing that “[t]he Constitution’s guarantee of effective counsel . . . means little if it does not include a right to know about plea offers.”

Faith in the facts about "shaken baby syndrome" has recently been shaken, but that didn't stop the U.S. Supreme Court from telling the 9th circuit that it overstepped its bounds in overturning a guilty verdict in California state court shaken baby case. From the per curiam (PDF):

In light of the evidence presented at trial, the Ninth Circuit plainly erred in concluding that the jury’s ver- dict was irrational, let alone that it was unreasonable for the California Court of Appeal to think otherwise. See §2254(d). Doubts about whether Smith is in fact guilty are understandable. But it is not the job of this Court, and was not that of the Ninth Circuit, to decide whether the State’s theory was correct. The jury decided that question, and its decision is supported by the record.

Jason Mazzone at Balkinization points out that the Court's decision was no surprise -- the Supreme Court had vacated the 9th circuit panel's decision twice before, pointedly drawing "the panel’s attention to this Court’s opinions highlighting the necessity of deference to state courts" on habeas review.

Be that as it may, Justice Ginsburg, joined by Justices Breyer and Sotomayor, dissented:

A lawsuit filed by SCG Power Rangers against a company offering what may be a cheap knockoff, tests the waters. From an IP blog via the ABA Journal, here's some expert commentary:

Are Halloween costumes copyrightable because they are garments, you ask? Although a broad category of creative works are eligible for copyright protection, the Copyright Act…excludes any “useful article” (e.g. clothing) — defined as “an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information” — from copyright protection. Thus although garments as a whole are not eligible for copyright protection, the individual design elements — for example a floral graphic applied to the fabric — may be copyrightable. In [Chosun Int’l Inc. v. Chrisha Creations Ltd.], the Second Circuit held that Halloween costumes may be copyrightable if the design elements are separable from the overall function of the costume as clothing.

If your law firm specializes in foreclosure, and indeed has been referred to as a "foreclosure mill," don't get caught holding a Halloween Party at which employees are photographed in costumes that appear to be making fun of the homeless. Joe Nocera describes the scene in the NYT op-ed piece, "What the Costumes Reveal."

If you've nearly cornered the market as the most desirable state for businesses to incorporate, as Delaware has done, you're not going to like proposed Congressional legislation to require businesses to file bankruptcy in their principal place of doing business. (Needless to say, this would have been a very helpful law for Michigan's bankruptcy bar had it been in place over the last decade or so.) The bill is called the Chapter 11 Bankruptcy Venue Reform Act of 2011, and it's sponsored by Michigan's John Conyers, ranking member of the House Judiciary committee, and Rep. Lamar Smith, chair of the House Judiciary committee. This story in DelawareOnline describes the Delaware perspective on the proposed legislation.

The issue is surfacing more often partly because obesity numbers have risen and the public is becoming more aware of the health dangers related to being overweight, according to lawyers surveyed by TotalAttorneys.com, an attorney-referral service. According to the Centers for Disease Control and Prevention, approximately 17%, or about 12.5 million, of the nation's children and teens are obese. Since 1980, according to CDC statistics, obesity rates have nearly tripled.